Brown v. Doe

• Decision Date: 16 October 1992
• Docket Number: No. 89 Civ. 2920 (VLB).,89 Civ. 2920 (VLB).
• Parties: Samuel BROWN, Petitioner, v. John DOE, Warden, Respondent.
• Court: U.S. District Court — Southern District of New York

803 F. Supp. 932

Samuel BROWN, Petitioner, v. John DOE, Warden, Respondent.

No. 89 Civ. 2920 (VLB).

United States District Court, S.D. New York.

October 16, 1992.

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Robert N. Isseks, Goshen, N.Y., Alex Smith, Middletown, N.Y., for petitioner.

Janice Gittelman, Asst. Dist. Atty., Rockland County, New City, N.Y., for respondent.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I

This petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 2254 on behalf of petitioner Samuel Brown, presents many arguments grouped into twenty-one (21) points, many of them overlapping, as grounds for requiring reversal of his state court conviction. I defer decision on the grounds discussed in part IV of this memorandum order, and conclude that none of petitioner's other claims has merit.

Petitioner makes no claim of insufficiency of evidence or that the case against him was thin or, indeed, anything less than overwhelming. He argues, however, that his conviction should be vacated on the basis that no reasonable jury could have found guilt beyond a reasonable doubt. Point 18, Memorandum of Law on Behalf of Petitioner at 482-83. Petitioner grounds this argument on the following: 1) inconsistencies in eyewitness accounts — often a hallmark of truthful and nonrehearsed testimony; 2) press reports to the effect that the jury improperly shifted the burden to the defense; 3) unspecified omissions of pro-defense evidence in the prosecutor's summation; and 4) a request by one juror — unquoted and uncited — for more evidence prior to deliberations.

Petitioner has exhausted his state remedies with respect to the grounds raised in this petition. These grounds were rejected in state court on the merits in careful and well-reasoned opinions, upon both direct appeal and post-conviction applications.

The state courts found that petitioner was severely beaten prior to trial in the Rockland County Jail, resulting in a broken neck and that medical treatment other than painkilling medicines was delayed for more than a month, thus justifying removal of petitioner to another institution, but not affecting the validity of the conviction. People v. Brown, 125 Misc.2d 132, 479 N.Y.S.2d 113 (Westchester Co. 1984).

Part II below discusses the procedural and factual background for this petition, part III discusses various of the contentions of petitioner related directly or indirectly to the conduct of the trial and part IV addresses the issue of the due process and Eighth Amendment constitutional violations to which petitioner was subjected prior to trial.¹ Those issues raised by petitioner which are not specifically discussed in this memorandum order do not entail federal constitutional violations which are factually or inherently legally prejudicial or inherently prejudicial under the circumstances of the case.

II

On June 26, 1984 a New York Supreme Court jury convicted petitioner of three counts of felony murder, three counts of robbery in the first degree and other related lesser felonies. Petitioner was sentenced to 25 years to life on each of the three counts of murder, each sentence to run consecutively. Petitioner first appealed this judgment to the Appellate Division, Second Department, which affirmed the judgment of conviction. People v. Brown, 136 A.D.2d 1, 525 N.Y.S.2d 618 (2nd Dep't 1988). Petitioner sought further review of the decision by the New York State Court of Appeals, which was denied by order dated June 14, 1988, 72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897. Petitioner also filed a petition for certiorari in the United States Supreme Court, which was denied on October 11, 1988, 488 U.S. 897, 109 S.Ct. 240, 102 L.Ed.2d 229.

In addition to his direct appeal, on March 18, 1985 petitioner filed a motion to vacate his conviction on the grounds of judicial bias, based upon the trial judge's campaign literature published after the judgment was entered. The motion was denied. Petitioner sought leave to appeal to both the Appellate Division and the Court of Appeals, which requests were denied, see 65 N.Y.2d 813, 493 N.Y.S.2d 1033, 482 N.E.2d 929 (1985). The United States Supreme Court denied certiorari on October 7, 1985, 474 U.S. 855, 106 S.Ct. 161, 88 L.Ed.2d 133.

There is no petition pending in any other court, state or federal, as to the judgment under attack. All of the grounds upon which petitioner's claims are based have been raised unsuccessfully in the state trial and appellate courts, and in the United States Supreme Court.

On October 20, 1981 a Brink's armored truck was robbed outside Nanuet National Bank at the Nanuet Mall in Rockland County. During the course of the robbery, two of the Brink's guards were shot, one of them fatally. The perpetrators fled the scene in a red van and a yellow Honda. The van was later exchanged for a U-Haul truck in the Korvettes shopping mall. A witness notified the police of the change in vehicles. The Rockland County Police were notified that the suspects were fleeing in a U-Haul and a yellow Honda.

The U-Haul was stopped by several Nyack police officers as it attempted to enter the New York State Thruway. While the officers were speaking with one of the U-Haul's passengers, Kathy Boudin, the back of the truck opened and six persons emerged firing automatic weapons at the police officers. Two police officers were killed and a third was wounded. When the shooting ended, Kathy Boudin was in custody, while all others escaped the scene.

South Nyack Police Chief Alan Colsey took up chase after a Honda fitting the broadcasted description of one of the escape vehicles, which was travelling at a high rate of speed a short distance from the scene of the shooting. The Honda, unable to negotiate a turn, crashed into a concrete retaining wall. Three persons, including Judith Clark, David Gilbert and petitioner Samuel Brown, were taken into custody; from inside the vehicle more than $800,000 was recovered.²

While at Rockland County Jail, petitioner was severely beaten and received serious injuries, without being given adequate medical attention for a period claimed to be as long as 75 days. Petitioner's attorney, Susan Tipograph, asked at a preliminary hearing on October 23, 1981 that petitioner be moved to a hospital outside the jurisdiction of Rockland County, whereupon petitioner was moved to the Federal Correctional Institution at Otisville, New York and examined at Medical Intake Screening (Facts submitted by petitioner vol. 1 at 8-9).

During the initial pretrial period ending in July, 1983 (approximately eight months before trial began in March, 1984) petitioner was represented by attorney Evelyn Williams. Over Ms. Williams' disapproval petitioner decided to talk with Federal Bureau of Investigation agents at Otisville about the robbery. Not wishing to represent a cooperating defendant who disregarded her advice, Ms. Williams sought to withdraw as petitioner's counsel in or around January 1983 but was not permitted to do so until other counsel was substituted in July, 1983.

Robert N. Isseks was assigned to represent petitioner, and has represented him from July, 1983 until the present time. The change in attorneys resulted in delaying petitioner's trial and also in severing petitioner's trial from that of his co-defendants other than Kathy Boudin, who was offered and accepted the option to be tried with petitioner. Mr. Isseks moved on September 9, 1983 for relief of various kinds including dismissal of the indictment based on brutality against the petitioner while incarcerated, which was denied.

In 1982, petitioner and Ms. Boudin had moved for a change in venue, alleging that the prejudicial character and intensity of local publicity created an emotionally charged atmosphere rendering it impossible for the defendants to receive a fair trial in Rockland County. This motion was denied as premature. Prior to the commencement of the voir dire, petitioner renewed his application for a change of venue, and the place of trial was changed to Orange County. On the eve of trial, petitioner made another motion to change the venue to a larger metropolitan arena. The court denied the motion with leave to renew. After the initial screening of the veniremen, petitioner renewed the application for a change of venue. The motion was granted based on the totality of the circumstances including the nature and homogeneity of the community and the percentage of prospective jurors who expressed a firm opinion. The case was removed to Westchester County.

During jury selection defense counsel questioned the petitioner's mental and physical capacity to stand trial. Petitioner said he was experiencing pain and was apprehensive about his confinement during the trial in the Rockland County Jail, where his initial injuries discussed above had been received.

In March, 1984 the court ordered an examination of petitioner. Two psychiatrists performed the examination, Dr. Leslie Brooks and Dr. Edward Allen. They both agreed that petitioner should remain at the Westchester County Jail for a three week evaluation. In the meantime, jury selection continued. In April, 1984 a competency hearing was held. The court determined at the hearing that petitioner was capable of proceeding with the trial.

Meanwhile codefendant Kathy Boudin had pleaded guilty to second degree murder and first degree robbery. Petitioner moved for a mistrial. Judge West questioned the members of the jury on their knowledge of Boudin's guilty plea and its effect upon their ability to render a fair and impartial verdict, and then denied the motion. The trial was completed, and the jury found petitioner guilty.

On June 20, 1984 a post-trial hearing was held. There the court examined two issues: 1) whether the indictment should be dismissed because of the brutality petitioner suffered at the Rockland County Jail and 2) whether ...